That is unlikely. Should I win, the more likely scenario is either the decision will be stayed pending a decision on the state's en banc petition or the en banc petition will be granted before the mandate is issued which would vacate the three-judge panel decision. We would then have to wait for the decision by the en banc panel.

So, ultimately, if things go your way in the long run, what will the final hoped-for result be? What are the possibilities of what else it might end up being, if there is a firearm-friendly decision of some sort?

If things go my way then the final result is constrained by the four corners of my Complaint. I have just updated the answer to your question at my website. As I have just crawled out of bed, there may be typos.

What Does my California Open Carry Lawsuit Seek to Achieve?

The simple answer is my lawsuit seeks to strike down California’s bans on the carrying of firearms openly for the purpose of self-defense:

In the curtilage of our homes (which for nearly everyone in the state means all of our residential property).

In and/on our motor vehicles including in and/or on any attached camper or trailer regardless of whether or not they are used as a residence.

In non-sensitive public places.

To this end my lawsuit seeks, at a minimum, a permanent injunction against California’s 1967 ban on openly carrying loaded firearms in public as well as a permanent injunction against California’s two, recently enacted, bans on openly carrying unloaded firearms in public, and everywhere those bans apply.

My lawsuit also contains an alternate challenge to the population and other restrictions on the issuance of licenses to openly carry loaded handguns. A challenge conditional on IF the court upholds California’s two CCW laws. My position is that the Open Carry right cannot be conditioned on a government issued permission slip. Given that the en banc Peruta decision held that there is no right to carry a concealed handgun in public, under the 9th Circuit Court of Appeals current case law, both CCW laws should be struck down if the court cannot find a right to bear arms in the Second Amendment.

Should the court of appeals contrive some reason not to strike them down then my lawsuit demands that unrestricted handgun Open Carry licenses be granted with no qualification restrictions other than the person being issued the license is not prohibited under Federal or California law from possessing a firearm. A handgun Open Carry license allows one to openly carry a loaded and exposed handgun within 1,000 feet of K-12 public and private schools but not on the grounds of any school.

PLEASE NOTE: If a lawsuit uses the right "magic words" (which mine does) then the lawsuit is not narrowly limited to seeking injunctions against certain laws. Lawsuits are bound by what is known as "The Four Corners of a Complaint." Any law which infringes on our Second Amendment right in any of the three places I listed above falls within the four corners of my complaint and that includes California's Gun-Free School Zone Act of 1995.

Although I did not seek an injunction against the prohibition on carrying handguns within 1,000 feet of a K-12 public or private school (California's GFSZ does not prohibit long guns) I did ask for shall-issue handgun Open Carry licenses. Moreover, I asked for declaratory relief in all non-sensitive public places which, if granted, can easily prohibit the state from prosecuting people for openly carrying handguns in additions to long guns within 1,000 feet of a K-12 public or private school because the declaratory relief would require the prosecutor to prove that the place you were in is a sensitive place.

That said, there are other laws which I did not challenge, and could not challenge, given the limitations of Federal civil rights lawsuits. One of the laws not challenged is the ban on firearms in state parks.

The current restrictions and prohibitions on the possession of firearms in schools, on school grounds and in government buildings will remain unaffected should I win.

If California adds to, or renames, or creates a new law infringing on our right to openly carry a firearm before my lawsuit is finished, that new law falls within the scope of this lawsuit.

My lawsuit does not seek concealed carry in any shape or form. Similarly, it does not challenge any law "regulating" the carriage of firearms in schools or government buildings.

My lawsuit does not challenge any Federal law. I don't see the current Congress or President enacting a Federal Open Carry ban but if they did then that would require a new Complaint in a new lawsuit.

That is unlikely. Should I win, the more likely scenario is either the decision will be stayed pending a decision on the state's en banc petition or the en banc petition will be granted before the mandate is issued which would vacate the three-judge panel decision. We would then have to wait for the decision by the en banc panel.

So, ultimately, if things go your way in the long run, what will the final hoped-for result be? What are the possibilities of what else it might end up being, if there is a firearm-friendly decision of some sort?

If things go my way then the final result is constrained by the four corners of my Complaint. I have just updated the answer to your question at my website. As I have just crawled out of bed, there may be typos.

What Does my California Open Carry Lawsuit Seek to Achieve?

The simple answer is my lawsuit seeks to strike down California’s bans on the carrying of firearms openly for the purpose of self-defense:

In the curtilage of our homes (which for nearly everyone in the state means all of our residential property).

In and/on our motor vehicles including in and/or on any attached camper or trailer regardless of whether or not they are used as a residence.

In non-sensitive public places.

To this end my lawsuit seeks, at a minimum, a permanent injunction against California’s 1967 ban on openly carrying loaded firearms in public as well as a permanent injunction against California’s two, recently enacted, bans on openly carrying unloaded firearms in public, and everywhere those bans apply.

My lawsuit also contains an alternate challenge to the population and other restrictions on the issuance of licenses to openly carry loaded handguns. A challenge conditional on IF the court upholds California’s two CCW laws. My position is that the Open Carry right cannot be conditioned on a government issued permission slip. Given that the en banc Peruta decision held that there is no right to carry a concealed handgun in public, under the 9th Circuit Court of Appeals current case law, both CCW laws should be struck down if the court cannot find a right to bear arms in the Second Amendment.

Should the court of appeals contrive some reason not to strike them down then my lawsuit demands that unrestricted handgun Open Carry licenses be granted with no qualification restrictions other than the person being issued the license is not prohibited under Federal or California law from possessing a firearm. A handgun Open Carry license allows one to openly carry a loaded and exposed handgun within 1,000 feet of K-12 public and private schools but not on the grounds of any school.

PLEASE NOTE: If a lawsuit uses the right "magic words" (which mine does) then the lawsuit is not narrowly limited to seeking injunctions against certain laws. Lawsuits are bound by what is known as "The Four Corners of a Complaint." Any law which infringes on our Second Amendment right in any of the three places I listed above falls within the four corners of my complaint and that includes California's Gun-Free School Zone Act of 1995.

Although I did not seek an injunction against the prohibition on carrying handguns within 1,000 feet of a K-12 public or private school (California's GFSZ does not prohibit long guns) I did ask for shall-issue handgun Open Carry licenses. Moreover, I asked for declaratory relief in all non-sensitive public places which, if granted, can easily prohibit the state from prosecuting people for openly carrying handguns in additions to long guns within 1,000 feet of a K-12 public or private school because the declaratory relief would require the prosecutor to prove that the place you were in is a sensitive place.

That said, there are other laws which I did not challenge, and could not challenge, given the limitations of Federal civil rights lawsuits. One of the laws not challenged is the ban on firearms in state parks.

The current restrictions and prohibitions on the possession of firearms in schools, on school grounds and in government buildings will remain unaffected should I win.

If California adds to, or renames, or creates a new law infringing on our right to openly carry a firearm before my lawsuit is finished, that new law falls within the scope of this lawsuit.

My lawsuit does not seek concealed carry in any shape or form. Similarly, it does not challenge any law "regulating" the carriage of firearms in schools or government buildings.

My lawsuit does not challenge any Federal law. I don't see the current Congress or President enacting a Federal Open Carry ban but if they did then that would require a new Complaint in a new lawsuit.

Ah, noted and appreciated! That is all quite interesting and, of course, I am very interested in seeing how this plays out.

I wonder how any of this can be applied to Illinois and its Illanoying prohibition on open carry?

“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me

“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb

“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein

“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me

No. Technically, he used "Anfo" - Ammonium nitrate/fuel oil. I'm talking about the same kind of "fertilizer" that Biff hated so much in the "Back to the Future" movies. Here's the best clip, from the second movie.

“We, the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow men who pervert the Constitution.” - - Abraham Lincoln

The 9th circuit court of appeals sent me and the state's attorney an email today asking us to confirm our participation in oral argument which is scheduled for February 15th.

Both of us confirmed that we will be participating in oral argument.

This is a pretty good indication that oral argument will take place.

The next hurdle is 12 days before oral argument when the panel is supposed to make a definitive decision on whether or not to have oral argument or to take the case under submission on the briefs without oral argument. The final hurdle is the morning of oral argument.

If the three-judge-panel decides to answer the question as to whether or not the Second Amendment extends beyond the doors to our home and does so in a published decision then the Young decision will set the precedent because it will be the first of our two cases taken under submission for a decision.

That said, given that Young's attorney asked on appeal for an order compelling that the Hawaii law be rewritten instead of simply asking that Mr. Young be given a handgun Open Carry permit, the probable outcome is that the decision of the district court will be reversed and his case remanded so that Mr. Young may amend his complaint. Courts cannot issue an order compelling a legislature to do anything, let alone to write a new law. There are many other procedural law problems with the Young lawsuit which you can read about at my website.

A similar thing happened with the Baker v. Kealoha case out of Hawaii. The decision was reversed and remanded in an unpublished decision. Baker did not even get his preliminary injunction which is not surprising given that his attorney conceded during oral argument that he had shot himself in the foot by filing his appeal.

Fortunately, there are no vehicle problems with my appeal or defects with my legal arguments. The state's attorney conceded that in a letter to the court.

Another appeal you should be watching is James Rothery, et al. v. County of Sacramento, et al., which was filed back in 2009 but was dismissed of in an unpublished decision because the court of appeals construed it as a concealed carry case (which it is), The attorney filed a petition claiming that his is an Open Carry case despite his not mentioning Open Carry even once in his 800+ paragraph complaint.

He filed an en banc petition 73 days ago and the petition is still pending.

It is within the realm of possibility that one day two or all three of us are going to find our appeals consolidated before an en banc court. More likely than not it would be just mine and Rothery's appeals.

...Courts cannot issue an order compelling a legislature to do anything, let alone to write a new law...

Well, I guess it's splitting hairs with the Shepard case. Judge Posner gave Illinois a timeframe in which to write a new law permitting concealed carry, but I suppose that he never mandated that they do so. If they failed to do it, it would have led to a Constitutional carry situation, not a violation of a court order. The effect remained the same, the state felt the court order necessitated a carry law.

...Courts cannot issue an order compelling a legislature to do anything, let alone to write a new law...

Well, I guess it's splitting hairs with the Shepard case. Judge Posner gave Illinois a timeframe in which to write a new law permitting concealed carry, but I suppose that he never mandated that they do so. If they failed to do it, it would have led to a Constitutional carry situation, not a violation of a court order. The effect remained the same, the state felt the court order necessitated a carry law.

Federal judges don't see it as "splitting hairs." It is a fundamental tenet of separation of powers. In any event, the oral argument will be broadcast live and an archive version made available later in the day at the 9th circuit court of appeals YouTube Channel. Let's wait and see if the judges focus on the Constitutional question and how much time, if any, they devote to the procedural flaws in the case.

Charles Nichols v. Edmund Brown, Jr. - Charles Nichols appeals pro se from the district court's judgment on the pleadings in his 42 U.S.C. § 1983 action challenging a set of California state laws regulating the open carry of firearms in public places.

Judge Berzon was on the Mehl v. Blanas concealed carry panel in which she said in questioning the attorney general's position that the Second Amendment right is confined to the home "I don't see how. if you buy the historical and other accounts in Heller, which we are of course obliged to do, you can say that?"

The state's attorney arguing on behalf of former Attorney General Harris in Mehl v. Blanas had said that the Second Amendment is limited to the home and he didn't think the historical analysis was "deeply analytical" to which Judge Berzon quipped "The [Heller] opinion wasn't deeply analytical or your position (the Attorney General's) isn't deeply analytical?"

In Teixeira v. County of Alameda, Judge Berzon wrote an extensive decision, joined by Judge Bybee, in which she held that the Second Amendment is a right to keep and bear arms but did not a create "[A] commercial entitlement to sell arms if the right of the people to obtain and bear arms was not compromised."

In my California Open Carry appeal the state's attorney representing Governor Brown and Attorney General Becerra argues that the historical analysis of the Second Amendment found in Heller and McDonald is wrong and that the court should conduct its own historical analysis and come to the opposite conclusion of that of the US Supreme Court.

I don't see either Judge Berzon or Judge Bybee publishing a decision in which they say the US Supreme Court was mistaken. Nor do I see them contradicting their own historical analysis from Teixeira.

I conducted a quick case law search on Judge Gleason and the Second Amendment but didn't find anything. However, given she is an Obama appointee, I assume she won't be on my side of things.

In any event, I only need two judges to prevail.

Judge Berzon's reputation as a defender of the Fourth Amendment precedes her and I don't see Judge Bybee creating an automatic exception to the warrant requirement for firearms especially since the US Supreme Court has already said that there isn't one, so this is encouraging for my Fourth Amendment claim as well.

So if I'm understanding your post correctly, the three judges selected to hear your case, two of them basically have ruled pro 2nd Amendment and the third has strongly supported the 4th Amendment. So it appears on the surface that if you do your job well, the State is going to have a hard time making a case to support their view that holds up in court.

I like the sound of that.

So, when you win this case, the only option for the State is to appeal to SCOTUS?

So if I'm understanding your post correctly, the three judges selected to hear your case, two of them basically have ruled pro 2nd Amendment and the third has strongly supported the 4th Amendment. So it appears on the surface that if you do your job well, the State is going to have a hard time making a case to support their view that holds up in court.

I like the sound of that.

So, when you win this case, the only option for the State is to appeal to SCOTUS?

Charles Nichols v. Edmund Brown, Jr. - Charles Nichols appeals pro se from the district court's judgment on the pleadings in his 42 U.S.C. § 1983 action challenging a set of California state laws regulating the open carry of firearms in public places.

Judge Berzon was on the Mehl v. Blanas concealed carry panel in which she said in questioning the attorney general's position that the Second Amendment right is confined to the home "I don't see how. if you buy the historical and other accounts in Heller, which we are of course obliged to do, you can say that?"

The state's attorney arguing on behalf of former Attorney General Harris in Mehl v. Blanas had said that the Second Amendment is limited to the home and he didn't think the historical analysis was "deeply analytical" to which Judge Berzon quipped "The [Heller] opinion wasn't deeply analytical or your position (the Attorney General's) isn't deeply analytical?"

In Teixeira v. County of Alameda, Judge Berzon wrote an extensive decision, joined by Judge Bybee, in which she held that the Second Amendment is a right to keep and bear arms but did not a create "[A] commercial entitlement to sell arms if the right of the people to obtain and bear arms was not compromised."

In my California Open Carry appeal the state's attorney representing Governor Brown and Attorney General Becerra argues that the historical analysis of the Second Amendment found in Heller and McDonald is wrong and that the court should conduct its own historical analysis and come to the opposite conclusion of that of the US Supreme Court.

I don't see either Judge Berzon or Judge Bybee publishing a decision in which they say the US Supreme Court was mistaken. Nor do I see them contradicting their own historical analysis from Teixeira.

I conducted a quick case law search on Judge Gleason and the Second Amendment but didn't find anything. However, given she is an Obama appointee, I assume she won't be on my side of things.

In any event, I only need two judges to prevail.

Judge Berzon's reputation as a defender of the Fourth Amendment precedes her and I don't see Judge Bybee creating an automatic exception to the warrant requirement for firearms especially since the US Supreme Court has already said that there isn't one, so this is encouraging for my Fourth Amendment claim as well.

So, when you win this case, the only option for the State is to appeal to SCOTUS?

If I win then my appeal will probably be heard before an en banc panel followed by the loser filing a petition for the case to be reheard before a full court. After that would be the petition to SCOTUS.

Charles Nichols v. Edmund Brown, Jr. - Charles Nichols appeals pro se from the district court's judgment on the pleadings in his 42 U.S.C. § 1983 action challenging a set of California state laws regulating the open carry of firearms in public places.

Judge Berzon was on the Mehl v. Blanas concealed carry panel in which she said in questioning the attorney general's position that the Second Amendment right is confined to the home "I don't see how. if you buy the historical and other accounts in Heller, which we are of course obliged to do, you can say that?"

The state's attorney arguing on behalf of former Attorney General Harris in Mehl v. Blanas had said that the Second Amendment is limited to the home and he didn't think the historical analysis was "deeply analytical" to which Judge Berzon quipped "The [Heller] opinion wasn't deeply analytical or your position (the Attorney General's) isn't deeply analytical?"

In Teixeira v. County of Alameda, Judge Berzon wrote an extensive decision, joined by Judge Bybee, in which she held that the Second Amendment is a right to keep and bear arms but did not a create "[A] commercial entitlement to sell arms if the right of the people to obtain and bear arms was not compromised."

In my California Open Carry appeal the state's attorney representing Governor Brown and Attorney General Becerra argues that the historical analysis of the Second Amendment found in Heller and McDonald is wrong and that the court should conduct its own historical analysis and come to the opposite conclusion of that of the US Supreme Court.

I don't see either Judge Berzon or Judge Bybee publishing a decision in which they say the US Supreme Court was mistaken. Nor do I see them contradicting their own historical analysis from Teixeira.

I conducted a quick case law search on Judge Gleason and the Second Amendment but didn't find anything. However, given she is an Obama appointee, I assume she won't be on my side of things.

In any event, I only need two judges to prevail.

Judge Berzon's reputation as a defender of the Fourth Amendment precedes her and I don't see Judge Bybee creating an automatic exception to the warrant requirement for firearms especially since the US Supreme Court has already said that there isn't one, so this is encouraging for my Fourth Amendment claim as well.

Looks like Young got a good panel

An opponent of Open Carry might say that.

O'Scannlain could have struck down the Hawaii Open Carry ban in Baker v. Kealoha when he and Callahan were on the same three-judge panel. Instead, he remanded (without issuing the preliminary injunction) via an unpublished decision. O'Scannlain wrote the sharply divided three-judge panel opinion in the now vacated, and dead as a doorknob, decision in Peruta v. San Diego in which he said it was not constitutional to file a lawsuit seeking Open Carry.

For those of you who are opponents of Open Carry, only Congress and the US Supreme Court can create bars to what is plead in a Complaint.

From an earlier, also vacated, decision in Nordyke v. King, Judge O'Scannlain wrote that only those gun-laws which present a "substantial burden" on one's Second Amendment right are subject to heightened scrutiny. All other laws which infringe on the Second Amendment right are automatically constitutional. "Intermediate Scrutiny" is a form of heightened scrutiny and we've all seen how well that has worked in striking down gun laws.

Judge Ikuta wrote the decision in Jackson v. San Francisco which upheld that city's mandatory firearms storage requirement and ammunition ban.

In Montana Shooting Sports a**'n v. Holder, Judge Clifton wrote the decision which held that the intrastate manufacture and sale of firearms fall within the Commerce Clause.

Given that the only three things the panel can do are 1) Affirm, 2) Make Hawaii shall-issue Open Carry or 3) Remand for a do-over, I suspect this particular three-judge panel is going to choose door number three and perhaps even door number one.

You have 3 GOP judges on a panel in the 9th circuit with a pretty simple question. Now while I'll agree there are some that good to say the least, in this case it's whether the right applies outside the home at all. I certainly don't see Oscannlain saying that and he's done well at convincing at least 1 other panelists in other cases.

You have 3 GOP judges on a panel in the 9th circuit with a pretty simple question. Now while I'll agree there are some that good to say the least, in this case it's whether the right applies outside the home at all. I certainly don't see Oscannlain saying that and he's done well at convincing at least 1 other panelists in other cases.

O'Scannlain said in his vacated decision in Peruta v. San Diego that one may not seek to openly carry a firearm, to do so is constitutionally barred.

Having Republican appointed judges on one's panel and fifty cents won't buy a cup of coffee. The district court judge in my case was appointed by Bush 41. He held that the possession of firearms, an innocent act under California law, has less protection (no protection) than someone who sends crystal meth through the mail. He also held that racial minorities are prohibited from bringing pre-enforcement challenges. According to District Judge Otero, one must plead that the laws had already been enforced against one because of his race.

Since 1971, a criminal charge prohibits one from challenging the charge in a Federal 1983 lawsuit and, if convicted, precludes one from challenging the conviction through a 1983 lawsuit. This creates a Catch-22 scenario.

And lest we forget, there are plenty of procedural law errors in the Young v. Hawaii lawsuit by which the three-judge panel can avoid the question as to whether or not the Second Amendment extends outside the doors of one's home.

Personally, Iâm not a fan of open carry. However, I *really* hope you succeed. Good luck!
Why?
This country desperately needs president that some form of carry outside the home is a constitutional right. If not concealed, then open.
The anti-gun types fear open more than concealed because they are afraid of the sight of the gun. If one or other is a right that cannot be denied then many of these anti-gun localities will eventually adopt more permissive concealed Laws because they really donât want people open carrying.
I hope you win the panel. I hope the State appeals en banc. I hope you win the full court. I hope the State appeals to SCOTUS. I hope they accept cert. Finally, I hope you win SCOTUS - and we can start referring to âNicholsâ in the same way that we today refer to âHellerâ...

Illinois used to have "Unlawful Use" provisions (pre-FCCA) that also had "exemptions" to those charges. The problem was that the defendant had to prove they were "eligible" to use the exemptions BEFORE they could use them !!

“We, the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow men who pervert the Constitution.” - - Abraham Lincoln

Illinois used to have "Unlawful Use" provisions (pre-FCCA) that also had "exemptions" to those charges. The problem was that the defendant had to prove they were "eligible" to use the exemptions BEFORE they could use them !!

As does California. They are known as an "affirmative defense." The state's attorney claims that these are "exceptions" and did not respond to my argument, with citation, that an affirmative defense is not an exception, it is an impermissible burden shifting to the person charged with violating the law. By not responding to my argument in their answering brief the Appellees have waived their defense to that argument.

It looks like you have about 14 hours until your orals. Hopefully you have everything ready to go and you are enjoying a nice dinner before you get a good night sleep. Good luck tomorrow.

I have just now finished showering and shaving (3:23 am). I went to bed early and had set my alarm for 4:00 am but I woke up an hour ago and there was no sense in trying to get back to sleep.

Unless you are one of those "morning people" who pops out of bed in the morning fully rested and full of energy, it is best to go to bed early and get up early enough that your internal clock is pointing toward 11:00 AM when one has his early morning appointment.